I don’t think this question is embarrassing but it’s quite difficult. Any judge who works for a long time sooner or later asks himself this very question, because legal control of this or that process including those in economy often comes late in comparison with realities of life. For me the answer here is evident because both in the Constitution and in the Code on Judiciary and Status of Judges it is stated clearly and definitely: considering a case a judge takes this or that decision only being guided by the law. This topic eternal: whether the law is good or bad – it should be followed. That’s why I think the decision  should be legitimate and justified.

On the other hand the Code of Economic Procedure says that an economic court ensures just legal proceedings. What to do in this situation?

Surely, one must try his best to take the decision which will be legal, justified and fair. But it’s not always possible. I think that in such situation the court decision should be legal but we mustn’t forget that there are very many instances which have the right to cancel it.  I don’t think that party in favor of which a just but illegal decision was taken, will feel better if after half a year or a year this decision will be cancelled because of its illegality. On mature and weighed consideration anybody will understand that in this case it will be even worse.

We strive for fairness of decisions using the tools provided for by the law. If we see somewhere illogicality of the law which results in unfair decisions, the Supreme Economic Court proposes to introduce amendments into corresponding legal acts.

Let me give you as an example a very frequent administrative offence – conducting a business without license or with violation of license conditions (Article 12.7 of the Administrative Offences Code). Responsibility and sanctions envisaged by this article previously included obligatory confiscation of proceeds. Even for some perfunctory offence (for example, a misprint in the juridical address of the licensee in the license blank)  the penalty was confiscation of proceeds for the entire term of such license. This could have been billions of roubles. The offence was minor and the decision on confiscation in these circumstances is, possibly, not just but the court could not do anything about it – a law is a law.

More than once we raised the question of inadequacy of responsibility for similar offences. At last, the lawmaker heard us and these amendments were introduced in the Administrative Offences Code and came into force on February, 23rd. Now this article says: ‘with confiscation or without it’. And now a court can take a legitimate and just decision for a minor offence – that is not to confiscate proceeds.

One should understand that life is life and judges are just ordinary people though invested with power.   That’s why such issues are likely to come up from time to time, unfortunately.  Of course, criminal or administrative responsibility with regard to judges who showed disrespect to the sides’ representatives is not envisaged in our country. Moreover, it is not envisaged in any country of the world. But at the same time in Belarus we have quite an efficient mechanism for fighting against this phenomenon. In the Supreme Economic Court there acts a qualified board of justice formed in accordance with the Code on Judiciary and Status of Judges. Its tasks, among other things, include consideration of disciplinary proceedings instigated against judges. To instigate a disciplinary proceeding there should be these or those grounds. That’s why if people encounter similar situations when approaching economic courts, they should address their appeals to qualified boards of justice of economic courts and to the Supreme Economic Court authorities. The qualified board considers each complain, if necessary,  carries out checking and if these or those facts proved to be true, takes necessary measures.

At that, I’d like to point out that such complaints as a rule come from the sides who lost their case. Then they claim that the judge was rude and impolite. If one of the sides was not satisfied with the decision of the court they probably should try to appeal this decision in accordance with the procedure envisaged by the Code of Economic Procedure.

What is the essence and the meaning of the procedure of  intermediation as a method of settling economic disputes? Why do they need this procedure today?

The procedure of intermediation is an alternative way of settling economic disputes which makes possible for the sides, with participation of an intermediate appointed by the court, to discuss their differences and come to a mutually acceptable for them agreement, which will be confirmed by the economic court and acquires the force of a court ruling – that is, it becomes obligatory.

Load on judicial system at the time of the crisis has increased  very considerably. In the last five years when nobody heard about any crisis it was increasing about twenty percent every year. In 2008 it was approaching to 80 cases per month for one judge. Even an incompetent person can see that one judge is just unable to properly consider 80 – 100 cases during one month.

In these circumstances since 2008 we started to develop the procedure of intermediation as an alternative to court proceedings. During one and half year the number of cases which went through the procedure of mediation in economic courts increased from 400 in 2008 to more than 10 thousand in the first quarter of this year. I think that in the present state of our system of economic courts this is quite a considerable quantity. If we assume that such rate of growth remains, there will be about 40 thousand of such cases and that means considerable decrease of load on judges.

Evident profit for courts is understandable: intermediation makes possible to unload court personnel as judges are not involved in the process of judicial mediation. But do  private entrepreneurs really need this procedure? A user sent to TUT.BY portal the following question: “Doesn’t it seem to you that intermediation has become the procedure imposed on judges by the court administration and through the judges – on the sides for good statistical data?  Doesn’t it seem to you that norms of the Code of Economic Procedure which regulate intermediation are applied toо freely? For example, if even one party does not agree to intermediation and appointment of a mediator, the judge has no right to impose this procedure on the sides but in practice some judges do impose it”.  Another user writes: “They literally force people to intermediation…” How would you comment on these opinions?

I’ll answer this question from the end. Dear listeners, let’s not carry the situation to the point of absurdity and say that somebody really force you. At the same time I‘d like to say that in such statements there is common sense and a bit of truth. As I told you we started to develop this procedure since 2008. This procedure was not known to anybody in Belarus. Yes, world community practiced this for a long time but we in Belarus did not know what intermediation and, moreover, judicial intermediation is.  Realizing all advantages of this procedure, the judges should popularize it at the first stage. I admit that in some cases, probably, with usage of administrative resource.

Now we don’t have to resort to it anymore for the simple reason that already parties themselves ask us to appoint a mediator. So forcing is out of the question for a long time. The situation has changed now and so has psychology and opinion of judges themselves. Moreover, while teaching mediators, carrying out seminars with judges we do not direct them towards this any more.  Lawyers already know the procedure of intermediation but not all of the heads of enterprises are aware of it. That’s why our propagandistic campaign is now aimed at maximum popularization of advantages of intermediation particularly in this target group.  Because it is the head of an enterprise who finally decides what stand to take in the court.

If such things our user talks about really took place it would be right to approach the Supreme Economic Court or even directly me. The Supreme Economic Court will not support the practice of t such imposing.

So, what advantages does the procedure of intermediation give to the parties of the dispute? Maybe, court proceedings will be better for them?

The procedure of intermediation is advantageous not only for economic court but to private entrepreneurs as well. During the last year intermediation procedures were initiated on 15 thousand cases. On 13 thousand of them this procedure was successfully completed by amicable agreement. These cases have not become the subject of full scale court examination and businessmen avoided escalation of the conflict: it was the very procedure of intermediation that made possible for them to come to peaceful settlement that is to preserve normal business relations between partners, private entrepreneurs  and that is important for further development of business.

But the representatives of the sides have the right to peacefully settle their differences also within court proceedings at any stage. Then why do they have to resort to intermediation for peaceful settlement? If the parties wish to come to some kind of agreement, then, maybe, you should let them do so in court, without any mediation?

What you say is correct, we practiced such approach before. I recollect my judicial experience and I can tell you that about fifteen years ago nobody heard about intermediation either in Europe or in America. But at the same time the very idea of peaceful settlement in court already attracted me. I had quite a number of such cases. Intuitively I already realized that it’s better not to torment myself over a difficult dispute, take decision, suffer the risk of its cancellation in higher instances especially in estimative situations. Maybe, I thought then, it would be better to explain to the parties advantages of an amicable agreement.

Then why do we need intermediation if amicable agreements are very effective in court proceedings?

Not all of the judges had such number of peaceful settlements, far from being so, and if now judges encounter such situations they will try to reach peaceful settlements between the sides. But intermediation is also profitable for parties from financial point of view: 50% of state duty can be recovered only in case of intermediation. If a judge simply confirms peaceful settlement without this procedure the plaintiff will not get back the duty.

But the parties can agree on their own and share the duty between themselves pointing this in the peaceful agreement…

Of course, recovery of a half of state duty is not the only argument though sometimes this is also important – everything depends on the amount of the duty.

The second argument is the possibility of efficient reconciliation that a mediator has and a court does not have. A court is rigidly bound with terms, judicial procedure which is stated from here to here in the Code of Economic Procedure. That’s why he does not have the possibilities (including time) which a mediator has. A mediator is not so busy, he does not have one hundred cases to consider as in the case of our judges with their present workload. During a month a mediator can have as many meetings with the sides as he wants and spend as much time with them as he wishes. Moreover, a mediator concentrates on only one result – reconciliation of the parties and signing of the peace agreement by them. And such concentration of efforts makes possible to obtain better effect in completion of the dispute by amicable agreement.

Yes, but a businessman addresses the court, lodges a complaint, pays state duty. A question comes up: what does he want from the court? Is it only peace? Quite often a businessman wants to get from the court an instrument of compulsion in the form of the court decision, court order and by it he wants to stimulate the partner to fulfill his obligations. If businessmen go to the court looking for an instrument of compulsion, will they find it in the procedure of intermediation?

I want to address heads of private business and say: you don’t run any risks whatsoever going into the procedure of intermediation. In case of a positive result you will get the peaceful agreement confirmed by the court accompanied by the corresponding court ruling. In the given case this court ruling which confirms the peaceful agreement should be regarded exactly as a judicial act with all ensuing consequences. And in case of non-fulfillment of such judicial act by a party you can get a court order – just an instrument of compulsion.

From the very essence of intermediation it follows that a mediator should not be a mere lawyer: for successful reconciliation of parties of a dispute he should also be a specialist in resolving of conflicts, in sociology and psychology. What requirements should a mediator appointed by the court meet as regards his qualification?  Do you have any special teaching courses (trainings) for them?

Presently, 44 mediators work in the system of economic justice. Mainly they are heads of management and departments, chief specialists of courts, that is, highly qualified specialists, the majority of whom are to be found in judges’ reserve. The Supreme Economic Court of the Republic of Belarus renders methodical and practical assistance to these specialists mediators in organizing and carrying out of mediation procedures, in working out of methods of these procedures, in raising of professional level of mediators.

Last year the Presidium of the Supreme Economic Court of the Republic of Belarus adopted regulation No 24 ‘Confirmation of Methodical Recommendations on Settlement of Economic Disputes by Means of Intermediation’ dated 15.04.2009.

For preparation of young skilled personnel we have worked out and recommended for introduction to departments of law of Belarusian institutes of higher education a special training course named ‘Alternative Methods of Settling Disputes’.

A user asks: ‘As a result of intermediation the parties have signed a peaceful agreement. The debtor has not fulfilled this agreement and has not transferred the money. In case court proceedings end with a court decision the plaintiff has the right to recover interest on the money used, up to actual fulfillment of the decision by the debtor.  What to do in case a peaceful agreement is signed after the intermediation procedure, because here we have no court decision?’  Can one expect accumulation of interest up to the actual fulfillment of the agreement or does it mean that the interest is lost?”

A user wants to know: ‘If a debtor has the possibility to fulfill the decision of the court, but doesn’t do it, can he be brought to administrative or even criminal responsibility for such non-fulfillment on the creditor’s claim?’ The user asks what to do with non-fulfillment of the peace settlement contained in the intermediation procedure as the responsibility for its non-fulfillment is not envisaged in the Code on Administrative Offences and in the Penal Code. It turns out that by settling a dispute through intermediation a creditor loses his right to approach the competent bodies with the request to bring such debtor to responsibility’ .

Here again we see narrow interpretation of the term ‘court decision’. Non-fulfillment both of a court decision and a peaceful agreement confirmed by a court as for their legal effect are absolutely identical and equal.

I supervise the service of court officers and already aimed them at drawing up protocols on bringing to administrative responsibility in case of non-fulfillment or sabotaging of court decisions. Now we have dozens of such protocols. They have been considered and  legal persons guilty of non-fulfillment of court decisions were brought to administrative responsibility in the form of penalties.

Presently intermediation exists not only in our country. Intermediation is an international trend. In the international legal doctrine they use the classical term ‘mediation’. What is the difference between our intermediation and foreign ‘mediation’?

The principle difference is that our intermediation is, at the present moment, an exclusively judiciary procedure that is, it is carried out by state officials – specialists of economic courts.

In the whole world intermediation, including classical mediation, is developing in different ways. But more often mediation is not legal and the mediator is a private person.

What, in your opinion, is more efficient for unloading of economic courts – developing of  private (out-of-court) mediation or legal mediation as legal mediation means the same load on the staff of economic courts?

That’s a very goof question. I think we should develop both. When both private (out-of-court) mediation and legal mediation are available, a party always has a choice – and when you can choose that is always good. Out-of-court mediation in this or that form existed in our country for a long time and it continues to exist. Experienced lawyers who guard their reputation and know their business well, advised their clients to carry out negotiations with the respective party in the dispute which is coming up. This was not called mediation but just judicial practice. The point was only to place it on some legislative basis. Now we have started to develop the draft law on out-of-court mediation and I think we will complete it soon enough.